00-28569. Manganese Metal From the People's Republic of China; Preliminary Results and Rescission in Part of Antidumping Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of Preliminary Results and Rescission in Part of Antidumping Duty Administrative Review of Manganese Metal from the People's Republic of China.

SUMMARY:

The Department of Commerce is currently conducting an administrative review of the antidumping duty order on manganese metal from the People's Republic of China. The period of review is February 1, 1999 through January 31, 2000. This review covers imports of subject merchandise from four producers/exporters.

We have preliminarily determined that sales have been made below normal value. If these preliminary results are adopted in our final results of review, we will instruct the U.S. Customs Service to assess antidumping duties based on the difference between the U.S. price and normal value.

We have also determined that the review of China National Electronics Import & Export Hunan Company should be rescinded.

We invite interested parties to comment on these preliminary results. We will issue the final results no later than 120 days from the date of publication of this notice.

EFFECTIVE DATE:

November 7, 2000.

FOR FURTHER INFORMATION CONTACT:

Greg Campbell or Suresh Maniam, Office I, Antidumping/Countervailing Duty Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all references to the Department of Commerce's (Department's) regulations are to 19 CFR Part 351 (April 1999).

Background

On February 14, 2000, the Department published in the Federal Register an Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 65 FR 7348 (February 14, 2000).

In accordance with 19 CFR 351.213(b)(2), on February 29, 2000, the petitioner, Eramet Marietta Inc., requested that we conduct an administrative review of this order covering China Metallurgical Import & Export Hunan Corporation/Hunan Nonferrous Metals Import & Export Associated Corporation (CMIECHN/CNIECHN), Minmetals Precious and Rare Minerals Import & Export Company (Minmetals), London & Scandinavian Metallurgical Co. Ltd./Shieldalloy Metallurgical Corporation (LSM/SMC),^[1] Sumitomo Canada, Ltd. (SCL), and China National Electronics Import & Export Hunan Company (CEIEC). On February 29, 2000, the co-petitioner, Kerr-McGee Chemical, LLC (Kerr-McGee), likewise requested that we conduct an administrative review of this order covering CMIECHN/CNIECHN, Minmetals, CEIEC, LSM, and SCL.

On March 30, 2000, we published a notice of initiation of this antidumping duty administrative review of the companies named by the petitioners. See Antidumping and Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 65 FR at 16875. On June 9, 2000, we issued questionnaires to the companies. On June 19, 2000, SCL informed the Department that, given the small volume of merchandise it entered during the period of review (POR), SCL would not participate in this review. CEIEC made a submission on June 23, 2000, certifying that it did not sell or ship subject merchandise to the United States during the POR. CMIECHN/CNIECHN and Minmetals submitted their questionnaire responses by July 24, 2000, and their supplemental responses by September 19, 2000. LSM/SMC submitted its questionnaire responses by July 24, 2000, and their supplemental responses by September 12, 2000. On August 29, 2000, Eramet Marietta informed the Department that, because it intended to close its manganese metal operations by year-end, it was withdrawing as a domestic interested party in this case.

Preliminary Rescission of Review in Part

As stated above in the Background section, CEIEC notified the Department that it had not made any U.S. sales of subject merchandise during the POR. Entry data provided by the U.S. Customs Service (Customs) confirms that there were no POR entries from CEIEC of manganese metal.^[2] Therefore, consistent with the Department's regulations and practice,^[3] we are preliminarily rescinding this review with respect to CEIEC.

Scope of Review

The merchandise covered by this review is manganese metal, which is composed principally of manganese, by weight, but also contains some impurities such as carbon, sulfur, phosphorous, iron and silicon. Manganese metal contains by weight not less than 95 percent manganese. All compositions, forms and sizes of manganese metal are included within the scope of this administrative review, including metal flake, powder, compressed powder, and fines. The subject merchandise is currently classifiable under subheadings 8111.00.45.00 and 8111.00.60.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.

Separate Rates

It is the Department's standard policy to assign all exporters of the merchandise subject to review in nonmarket economy (NME) countries a single rate unless an exporter can demonstrate an absence of government control, both in law and in fact, with respect to exports. To establish whether an exporter is sufficiently independent of government control to be entitled to a separate rate, the Department analyzes the exporter in light of the criteria established in the Final Determination of Sales at Less Than Fair Value: Sparklers from the People's Republic of China, 56 FR 20588 (May 6, 1991) (Sparklers), as amplified in the Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China, 59 FR 22585 (May 2, 1994) (Silicon Carbide). Evidence supporting, though not requiring, a finding of de jure absence of government control over export activities includes: (1) an absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) any other formal measures by the government decentralizing control of companies. See Sparklers, 56 FR at 20589. A de facto analysis of absence of government control over exports is based on four factors—whether the respondent: (1) sets its own export prices independent of the government and other exporters; (2) retains the proceeds from its export sales and makes independent decisions regarding the disposition of profits or financing of losses; (3) has the authority to negotiate and sign contracts and other agreements; and (4) has autonomy from the government regarding the selection of management. See Silicon Carbide, 59 FR at 22587; see also Sparklers, 56 FR at 20589.

In the Notice of Amended Final Determination and Antidumping Duty Order; Manganese Metal from the People's Republic of China 61 FR 4415 (February 6, 1996) (LTFV Investigation), we determined that there was de jure and de facto absence of government control of each company's export activities and determined that each company warranted a company-specific dumping margin. For the POR, CMIECHN/CNIECHN and Minmetals responded to the Department's request for information regarding separate rates. We have found that the evidence on the record is consistent with the final determination in the LTFV Investigation and both CMIECHN/CNIECHN and Minmetals continue to demonstrate an absence of government control, both in law and in fact, with respect to their companies' exports, in accordance with the criteria identified in Sparklers and Silicon Carbide.

Use of Facts Otherwise Available

Section 776(a)(2) of the Act provides that if an interested party: (1) withholds information that has been requested by the Department, (2) fails to provide such information in a timely manner or in the form requested, (3) significantly impedes a proceeding under the antidumping statute, or (4) provides information that cannot be verified, the Department shall use, subject to section 782(d), facts available in reaching the applicable determination.

1. Application of Facts Available

On June 19, 2000, SCL informed the Department that, given the small volume of merchandise it entered during the POR, SCL would not participate in this review. We preliminarily determine that, in accordance with sections 776(a)(2)(A) and (C) of the Act, the use of facts otherwise available is appropriate for SCL because it did not submit a response to our questionnaire issued to it on June 9, 2000.

2. Use of Adverse Facts Available

In selecting from among the facts available, section 776(b) of the Act authorizes the Department to use an adverse inference if the Department finds that a party has failed to cooperate by not acting to the best of its ability to comply with requests for information. See Statement of Administrative Action (SAA), H.R. Doc. 103-316 at 870 (1994). To examine whether the respondent “cooperated” by “acting to the best of its ability” under section 776(b) of the Act, the Department considers, inter alia, the accuracy and completeness of submitted information and whether the respondent has hindered the calculation of accurate dumping margins. See e.g., Certain Welded Carbon Steel Pipes and Tubes From Thailand: Final Results of Antidumping Duty Administrative Review, 62 FR 53808, 53819-53820 (October 16, 1997).

As discussed above, SCL failed to respond to the Department's questionnaire. Thus, we have determined that SCL withheld information that we requested and significantly impeded the antidumping proceeding. Without information from SCL, the Department is unable to review SCL's entries and calculate an assessment rate for those entries. We therefore find that SCL has not acted to the best of its ability to comply with our requests for information. Accordingly, consistent with section 776(b) of the Act, we have applied adverse facts available to this company.

3. Corroboration of Secondary Information

In this review, we are using as adverse facts available the PRC-wide rate (143.32 percent) determined for non-responding exporters involved in the LTFV Investigation. This margin, which is the highest rate determined in any segment of this proceeding, represents the highest margin in the petition, as modified by the Department for the purposes of initiation. See Initiation of Antidumping Duty Investigation: Manganese Metal from the People's Republic of China, 59 FR 61869 (December 2, 1994) (LTFV Initiation). It is also the rate currently applicable to all PRC exporters that do not have separate rates.

Information derived from the petition constitutes secondary information within the meaning of the SAA. See SAA at 870. Section 776(c) of the Act provides that the Department shall, to the extent practicable, corroborate secondary information from independent sources reasonably at its disposal. The SAA provides that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value. The SAA at 870, however, states further that “the fact that corroboration may not be practicable in a given circumstance will not prevent the agencies from applying an adverse inference.” In addition, the SAA at 869, emphasizes that the Department need not prove that the facts available are the best alternative information.

The PRC-wide rate being used in this proceeding as adverse facts available was previously corroborated. See Manganese Metal from the People's Republic of China; Final Results of Antidumping Duty Administrative Review, 64 FR 49447 (September 13, 1999). We have no new information that would lead us to reconsider that decision.

Export Price

For U.S. sales made by CMIECHN/CNIECHN and Minmetals we calculated an export price, in accordance with section 772(a) of the Act, because the subject merchandise was sold to unaffiliated purchasers in the United States prior to importation into the United States.

For these sales, we calculated export price based on the price to unaffiliated purchasers. We deducted an amount, where appropriate, for foreign inland freight, ocean freight, and marine insurance.

For U.S. sales made by LSM/SMC, we calculated a constructed export price (CEP), in accordance with section 772(c) of the Act, because the subject merchandise was sold by an affiliated importer in the United States after importation into the United States. We calculated CEP based on the packed, ex-warehouse prices from the U.S. subsidiary to unaffiliated customers. We made deductions, where appropriate, from the starting price for CEP for international freight from the United Kingdom to the United States, U.K. inland freight, marine insurance, U.S. customs duties, U.S. brokerage, U.S. inland freight, and U.S. freight to the unaffiliated purchaser. In accordance with section 772(d)(1) of the Act, we made further deductions from the starting price for CEP for the following selling expenses that related to economic activity in the United States: credit expenses and indirect selling expenses, including inventory carrying costs. In accordance with section 772(d)(3) of the Act, we have also deducted from the starting price an amount for profit. Finally, since the sales made by SMC to the unaffiliated purchaser were further manufactured products, we further deducted, in accordance with section 772(d)(2), the following costs associated with the further manufacturing: material, labor, overhead, packing, general and administrative expenses, and interest expense.

Normal Value

1. Nonmarket-Economy Status

For the calculation of dumping margins for merchandise originating in NME countries, section 773(c)(1) of the Act provides that the Department shall determine normal value (NV) using a factors-of-production methodology if (1) the merchandise is exported from an NME country, and (2) the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act.

The Department has treated the PRC as an NME country in all previous antidumping cases. In accordance with section 771(18)(c)(i) of the Act, any determination that a foreign country is a NME country shall remain in effect until revoked by the administering authority. None of the parties to this proceeding has contested such treatment in this review. Furthermore, available information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. Therefore, we treated the PRC as a NME country for purposes of this review and calculated NV for the two PRC exporters CMIECHN/CNIECHN and Minmetals by valuing the factors of production in a comparable market-economy country which is a significant producer of comparable merchandise.

With regard to NV for LSM/SMC's sales, the statute directs that,

Where the subject merchandise is exported to the United States from an intermediate country, normal value shall be determined in the intermediate country, except that normal value may be determined in the country of origin if—

(A) the producer knew at the time of the sale that the subject merchandise was destined for exportation;

(B) the subject merchandise is merely transshipped through the intermediate country;

(C) sales of the foreign like product in the intermediate country do not satisfy the conditions of paragraph (1)(c); or

(D) the foreign like product is not produced in the intermediate country.

See Section 773(a)(3) of the Act.

Information from the petition and on the record of prior administrative reviews has established the United Kingdom does not produce the foreign like product. Parties to this review have submitted no evidence suggesting that this situation has changed. Thus, at least one of the above statutory criteria (i.e., criterion D) has been met. Therefore, to determine whether LSM/SMC's sales were sold at prices below NV, we have determined NV in the PRC, the country of origin. Furthermore, because the country of origin is the PRC, consistent with section 773(c)(1) of the Act we have constructed a NV based on PRC factors of production. As a result, the NV for LSM/SMC is the same as the NV for CMIECHN/CNIECHN.^[4]

2. Surrogate-Country Selection

In accordance with section 773(c)(4) of the Act and section 351.408(b) of our regulations, we preliminarily determine that India is comparable in terms of economic development to the PRC.^[5] In addition, India is a significant producer of comparable merchandise. Therefore, for this review, we have selected India as the surrogate country and have used publicly available information relating to India, unless otherwise noted, to value the various factors of production.

3. Factors-of-Production Valuation

For purposes of calculating NV, we valued PRC factors of production in accordance with section 773(c)(1) of the Act. Factors of production include but are not limited to the following elements: (1) hours of labor required; (2) quantities of raw materials used; (3) amounts of energy and other utilities consumed; and (4) representative capital cost, including depreciation. In examining potential surrogate values, we selected, where possible, the publicly available value which was: (1) an average non-export value; (2) representative of a range of prices within the POR or closest in time to the POR; (3) product-specific; and (4) tax-exclusive. Where we could not obtain a POR-representative price for an appropriate surrogate value, we selected a value in accordance with the remaining criteria mentioned above which was the closest in time to the POR. In accordance with this methodology, we have valued the factors as follows.^[6]

We valued manganese Ore 1 using a POR price quotation for carbonate manganese ore submitted by the petitioner. We valued Ore 2 using an average of two POR price quotations from Indian manganese ore producers. We adjusted these prices for Ore 1 and Ore 2 to account for the reported manganese content of the ore used in the PRC manufacture of the subject merchandise and to account for the differences in transportation distances.

To value various process chemicals used in the production of manganese metal, we used prices obtained from the following Indian sources: Indian Chemical Weekly (February 1999 through January 2000), the Monthly Statistics of Foreign Trade of India, Volume II—Imports (April 1998 through August 1998) (Import Statistics), as well as price quotations from various Indian chemicals producers. Where necessary, we adjusted these values to reflect inflation up through the POR using an Indian wholesale price index (WPI) published by the International Monetary Fund (IMF). Additionally, we adjusted these values, where appropriate, to account for differences in chemical content and to account for freight costs incurred between the suppliers and manganese metal producers.

We have derived a surrogate value for electricity based on electricity price data published by the Center for Monitoring Indian Economy (CMIE) and on an electricity-specific price index published by the Reserve Bank of India.

To value the labor input, consistent with 19 CFR 351.408(c)(3), we used the regression-based estimated wage rate for the PRC as calculated by the Department.^[7]

We have derived ratios for selling, general, and administrative expenses (SG&A), factory overhead, and profit based on aggregated financial data published by the CMIE for the Indian nonferrous metals industry.

For most packing materials values, we used per-unit values based on data from the Import Statistics. For metal drums, however, we used a price quote from an Indian drum manufacturer. We made further adjustments, where necessary, to these packing material values to account for freight costs incurred between the PRC supplier and manganese metal producers.

To value rail freight, we relied on rate tables published by the Indian Railway Conference Association. To value truck freight, we used a price quotation from an Indian freight provider. With regard to ocean freight, where a company had reported that it incurred ocean freight expenses in market economy currency, from a market economy provider through a market economy agent, we used the reported expenses to value all ocean freight costs reported by that company.

Preliminary Results of the Review

As a result of our review, we preliminarily determine that the following percentage weighted-average margins exist for the period February 1, 1999, through January 31, 2000:

Manufacturer/exporter	Margin
CMIECHN/CNIECHN	27.18
Minmetals	19.70
LSM/SMC	13.33
SCL	143.32

Because we are rescinding the review with respect to CEIEC, the company-specific rate for that company remains unchanged.

Parties to the proceeding may request disclosure within five days of the date of publication of this notice. Any interested party may request a hearing within 30 days of publication of this notice. See 19 CFR 351.310(c). Any hearing, if requested, will be held approximately 44 days after the date of publication, or the first working day thereafter. Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of this notice. Rebuttal briefs and rebuttals to written comments, which must be limited to issues raised in such briefs or comments, may be filed not later than 37 days after the date of publication. Parties who submit arguments are requested to submit with the argument (1) a statement of the issue, (2) a brief summary of the argument, and (3) a table of authorities. Further, parties submitting written comments should provide the Department with an additional copy of the public version of any such comments on diskette. The Department will issue a notice of final results of this administrative review, including the results of its analysis of issues raised in any such written comments, within 120 days of publication of these preliminary results.

Assessment Rates

Pursuant to 19 CFR 351.212(b), the Department calculates an assessment rate for each importer of the subject merchandise. Upon issuance of the final results of this administrative review, if any importer-specific assessment rates calculated in the final results are above de minimis (i.e., at or above 0.5 percent), the Department will issue appraisement instructions directly to the Customs Service to assess antidumping duties on appropriate entries by applying the assessment rate to the entered value of the merchandise. For assessment purposes, we calculate importer-specific assessment rates for the subject merchandise by aggregating the dumping duties due for all U.S. sales to each importer and dividing the amount by the total entered value of the sales to that importer.

Cash Deposit Requirements

To calculate the cash-deposit rate for each producer and/or exporter included in this administrative review, we divided the total dumping margins for each company by the total net value for that company's sales during the review period.

Furthermore, the following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of manganese metal entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(1) of the Act: (1) the cash deposit rate for CMIECHN/CNIECHN, Minmetals, LSM/SMC, and SCL will be the rates established in the final results of this administrative review, except if the rate is less than 0.5 percent and, therefore, de minimis, the cash deposit will be zero; (2) for CEIEC, which we determined to be entitled to a separate rate in the LTFV Investigation but which did not have shipments or entries to the United States during the POR, the rate will continue to be the currently-applicable rate of 11.77 percent, (3) for non-PRC exporters of subject merchandise from the PRC not specifically listed above, the cash deposit rate will be the rate applicable to the PRC supplier of that exporter; ^[8] and (4) for all other PRC exporters, the cash deposit rate will be 143.32 percent.

These cash deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.

Notification to Importers

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

We are issuing and publishing this determination in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Dated: October 31, 2000.

Troy H. Cribb,

Assistant Secretary for Import Administration.

Footnotes

1.  SMC is the affiliated U.S. importer of manganese metal from the U.K. reseller LSM.

2.  See Memorandum to the Case File; Confirmation of No Shipment by CEIEC (October 31, 2000).

3.  See 19 CFR 351.213(d)(3); Silicon Metal from Brazil; Final Results of Antidumping Duty Administrative Review, 61 FR 46763 (September 5, 1996).

4.  For a more in-depth discussion of these issues, see Memorandum to Richard W. Moreland; Third-County Resellers and Treatment of SG&A and Movement Expenses (October 25, 2000).

5.  See Memorandum to Susan Kuhbach from Jeff May; Non-Market-Economy Status and Surrogate Country Selection (June 12, 2000), a public copy of which is available in the Central Records Unit.

6.  For a more detailed explanation of the methodology used in calculating various surrogate values, see Memorandum to the File from Case Team; Calculations for the Preliminary Results (October 31, 2000).

7.  See the ITA website at http://ia.ita.doc.gov/​wages/​

8.  See e.g., Manganese Metal from the People's Republic of China; Final Results of Antidumping Duty Administrative Review, 64 FR 49447 (September 13, 1999); Fresh Garlic from the People's Republic of China; Final Results of Antidumping Duty Administrative Review and Partial Termination of Administrative Review, 62 FR 23758, 23760 (May 1, 1997); Sparklers from the People's Republic of China; Final Results of Antidumping Duty Administrative Review, 61 FR 39630, 39631 (July 30, 1996).